motion information statement no. 16-1615...steven f. molo robert k. kry justin v. shur mololamken...

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUITThurgood Marshall U.S. Courthouse 40 Foley Square, New York, NY 10007 Telephone: 212-857-8500

MOTION INFORMATION STATEMENT

Docket Number(s): Caption [use short title]

Motion for:

Set forth below precise, complete statement of relief sought:

MOVING PARTY: OPPOSING PARTY:

��Plaintiff ��Defendant

��Appellant/Petitioner ��Appellee/Respondent

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[name of attorney, with firm, address, phone number and e-mail]

Court-Judge/Agency appealed from:

Please check appropriate boxes: FOR EMERGENCY MOTIONS, MOTIONS FOR STAYS AND

INJUNCTIONS PENDING APPEAL:

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��Yes ��No (explain): Has this relief been previously sought in this Court? ��Yes ��No

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��Unopposed � Opposed � Don’t Know

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� Yes � No � Don’t Know

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Signature of Moving Attorney:

___________________________________Date: ___________________ Service by: ��CM/ECF ��Other [Attach proof of service]

Form T-1080 (rev. 12-13)

No. 16-1615stay the mandate

stay the mandate pending the filing and

UNITED STATES OF AMERICA,Appellee,v.

SHELDON SILVER,Defendant-Appellant.

disposition of a petition for certiorari

Sheldon Silver United States✔

Steven F. Molo Margaret M. Garnett

MoloLamken LLP

430 Park Ave., New York, NY 10022

(212) 607-8160 / [email protected]

United States Attorney's Office, SDNY

1 St. Andrew's Plaza, New York, NY 10007

(212) 637-2520 / [email protected] (Caproni, J.)

✔

✔

✔

✔

✔

✔

03/16/17

/s/ Steven F. Molo 7/27/17

Case 16-1615, Document 110, 07/27/2017, 2088080, Page1 of 22

No. 16-1615 In the United States Court of Appeals

FOR THE SECOND CIRCUIT

UNITED STATES OF AMERICA,

Appellee,

V.

SHELDON SILVER,

Defendant-Appellant.

Appeal from the United States District Court for the Southern District of New York

DEFENDANT-APPELLANT’S MOTION TO STAY THE MANDATE

Joel Cohen STROOCK & STROOCK & LAVAN LLP 180 Maiden Lane New York, New York 10038 (212) 806-5644

Steven F. MoloRobert K. Kry Justin V. Shur MOLOLAMKEN LLP 430 Park Avenue New York, New York 10022 (212) 607-8160

Attorneys for Defendant-Appellant


i

TABLE OF CONTENTS

Page

INTRODUCTION ..................................................................................................... 1

BACKGROUND ....................................................................................................... 2

ARGUMENT ............................................................................................................. 4

I. MR. SILVER’S PETITION FOR CERTIORARI WOULD PRESENT A

SUBSTANTIAL QUESTION .................................................................................. 5

A. The Court’s Money Laundering Ruling Presents a Substantial Question .............................................................................. 5

B. The Court’s Extortion and Honest Services Rulings Also Present Substantial Questions ............................................................. 10

II. THERE IS GOOD CAUSE FOR A STAY .............................................................. 13

CONCLUSION ........................................................................................................ 16


ii

TABLE OF AUTHORITIES

Page(s)

CASES

Abney v. United States, 431 U.S. 651 (1977) .......................................................... 14

Burks v. United States, 437 U.S. 1 (1978) ............................................................... 14

United States ex rel. Chandler v. Cook Cnty., 282 F.3d 448 (7th Cir. 2002) ..................................................................................................... 14

Herzog v. United States, 75 S. Ct. 349 (1955) ........................................................... 5

McDonnell v. United States, 136 S. Ct. 2355 (2016) ...................................... 1, 3, 13

Scheidler v. Nat’l Org. for Women, Inc., 537 U.S. 393 (2003) ............................... 11

Sekhar v. United States, 133 S. Ct. 2720 (2013) ..................................... 3, 11, 12, 13

Skilling v. United States, 561 U.S. 358 (2010) .............................................. 3, 12, 13

United States v. Giancola, 754 F.2d 898 (11th Cir. 1985) ........................................ 5

United States v. Loe, 248 F.3d 449 (5th Cir. 2001) ............................................... 4, 6

United States v. Olmeda, 461 F.3d 271 (2d Cir. 2006) ........................................... 14

United States v. Randell, 761 F.2d 122 (2d Cir. 1985) .............................................. 5

United States v. Robinson, 663 F.3d 265 (7th Cir. 2011) ........................................ 12

United States v. Rutgard, 116 F.3d 1270 (9th Cir. 1997) .................................. 4, 7, 8

STATUTES AND RULES

18 U.S.C. §1957 ...............................................................................................passim

18 U.S.C. §1957(a) ............................................................................................ 2, 8, 9

18 U.S.C. §3143(b)(2) ............................................................................................... 5

Fed. R. App. P. 41(d)(2)......................................................................................... 1, 4


iii

Fed. R. App. P. 41(d)(2)(A) ................................................................................... 4, 5

Sup. Ct. R. 10(a) ......................................................................................................... 7

Sup. Ct. R. 10(c) ....................................................................................................... 10

OTHER AUTHORITIES

Bureau of Justice Statistics, Special Report: Money Laundering Offenders, 1994-2001 (July 2003) ........................................................................ 8

Internal Revenue Service, Statistical Data – Money Laundering & Bank Secrecy Act (Oct. 12, 2016) ......................................................................... 8

Restoring Key Tools To Combat Fraud and Corruption After the Supreme Court’s Skilling Decision: Hearing Before the S. Comm. on the Judiciary, 111th Cong. (Sept. 28, 2010) .................................................. 13

Stephen M. Shapiro et al., Supreme Court Practice (10th ed. 2013) .................. 8, 10

U.S. Attorneys’ Manual (2007) ................................................................................. 9

U.S. Dep’t of Treasury et al., 2007 National Money Laundering Strategy (May 3, 2007) ......................................................................................... 8


1

INTRODUCTION

Pursuant to Federal Rule of Appellate Procedure 41(d)(2), Mr. Silver

respectfully moves the Court to stay the mandate pending the filing and disposition

of a petition for a writ of certiorari in the Supreme Court.

This Court vacated Mr. Silver’s convictions and remanded for a new trial,

concluding that McDonnell v. United States, 136 S. Ct. 2355 (2016), rendered the

district court’s “official act” jury instructions erroneous. But this Court rejected

Mr. Silver’s challenges to the sufficiency of the evidence on each count –

challenges that would have precluded the Government from retrying the charges.

Those rulings present substantial grounds for Supreme Court review. In particular,

this Court’s interpretation of a key federal money laundering statute, 18 U.S.C.

§1957, exacerbates a longstanding and acknowledged circuit conflict.

The Court should accordingly stay the mandate so Mr. Silver can seek

Supreme Court review of this Court’s sufficiency rulings. Given the clear circuit

conflict, Mr. Silver’s petition for a writ of certiorari would plainly present a

substantial question. And there is good cause for a stay. Absent a stay, the

Government could prosecute Mr. Silver for conduct that the Supreme Court later

concludes is insufficient as a matter of law – a plain violation of his double

jeopardy rights. Moreover, a retrial at this stage would burden the jury and the

district court with evidence and legal argument on matters that could well be


2

rendered entirely irrelevant if the Supreme Court grants review. Finally, the

Government will suffer no prejudice should this Court grant a stay for a relatively

brief period to allow the Supreme Court to consider the petition.

Accordingly, the Court should stay the mandate pending the filing and

disposition of a petition for a writ of certiorari.

BACKGROUND

The Government charged Mr. Silver with four counts of honest services

fraud, two counts of extortion, and one count of money laundering stemming from

his receipt of referral fees in connection with his private law practice. Slip op. at

16. According to the Government, Mr. Silver committed honest services fraud and

extortion by performing various “official acts” for a respected mesothelioma

doctor and two real estate developers in return for client referrals to the law firms

with which he worked. Id. at 7-15. The Government also accused Mr. Silver of

money laundering in violation of §1957 – a statute that makes it unlawful for a

defendant to “knowingly engage[] or attempt[ ] to engage in a monetary transaction

in criminally derived property of a value greater than $10,000 [that] is derived

from specified unlawful activity.” 18 U.S.C. §1957(a). According to the

Government, Mr. Silver violated that prohibition by investing the referral fees he

earned from his law practice in various investment vehicles. Slip op. at 15-16.


3

On July 13, 2017, this Court issued a published opinion vacating Mr.

Silver’s convictions on all counts on the ground that the district court had given

erroneous “official act” instructions. Those instructions, the Court held, did not

comply with McDonnell v. United States, 136 S. Ct. 2355 (2016), because they did

not inform the jury that “official acts” include only “formal exercise[s] of

government power.” Slip op. at 33-36.

Nonetheless, the Court rejected Mr. Silver’s challenges to the sufficiency of

the evidence on each count. Mr. Silver urged that the Government failed to prove

extortion because there was no evidence he had “deprive[d]” anyone of property as

required by Sekhar v. United States, 133 S. Ct. 2720, 2724 (2013). This Court

disagreed, opining that, “[b]y engaging in the alleged schemes, Silver is said to

have deprived Dr. Taub, the Developers, and other law firms of property.” Slip op.

at 24. Mr. Silver also urged that the Government had failed to prove honest

services fraud because there was no evidence of any “paradigmatic” bribe or

kickback as required by Skilling v. United States, 561 U.S. 358, 409-11 (2010).

Again, this Court disagreed, asserting that the referral fees Mr. Silver received

were “bribes or kickbacks within the meaning of Skilling.” Slip op. at 24-25.

The Court also rejected Mr. Silver’s sufficiency challenge on the money

laundering count. Mr. Silver urged that the Government could not prove money

laundering beyond a reasonable doubt based on transactions from a commingled


4

account that contained sufficient “clean” funds to cover the transactions. The

Court acknowledged that the Fifth and Ninth Circuits “both require the

Government to trace criminally derived proceeds when they have been

commingled with funds from legitimate sources to prove money laundering under

Section 1957.” Slip op. at 25-26 & n.52 (citing United States v. Loe, 248 F.3d 449,

467 (5th Cir. 2001); and United States v. Rutgard, 116 F.3d 1270, 1292-93 (9th

Cir. 1997)). But the Court dismissed those holdings as a “minority” view and

instead asserted that “the Government is not required to trace criminal funds that

are comingled with legitimate funds to prove a violation of Section 1957.” Id. at

26. “ ‘[A] requirement that the government trace each dollar of the transaction to

the criminal, as opposed to the non‐criminal activity,’” the Court asserted, “ ‘would

allow individuals effectively to defeat prosecution for money laundering by simply

commingling legitimate funds with criminal proceeds.’” Id. at 26-27.

ARGUMENT

Federal Rule of Appellate Procedure 41(d)(2) authorizes a party to “move to

stay the mandate pending the filing of a petition for a writ of certiorari in the

Supreme Court.” Fed. R. App. P. 41(d)(2)(A). The motion must show that “the

certiorari petition would present a substantial question” and that “there is good

cause for a stay.” Id. Each of those requirements is met here.


5

I. MR. SILVER’S PETITION FOR CERTIORARI WOULD PRESENT A

SUBSTANTIAL QUESTION

Mr. Silver satisfies the first requirement for a stay of the mandate because

his petition for certiorari would present a “substantial question.” Fed. R. App. P.

41(d)(2)(A). The “substantial question” standard does not require Mr. Silver to

show that his petition will more likely than not be granted. Rather, “a substantial

question ‘is one of more substance than would be necessary to a finding that it was

not frivolous. It is a ‘close’ question or one that very well could be decided the

other way.’” United States v. Randell, 761 F.2d 122, 125 (2d Cir. 1985) (quoting

United States v. Giancola, 754 F.2d 898, 901 (11th Cir. 1985)) (interpreting same

standard in 18 U.S.C. §3143(b)(2)) (emphasis added). In particular, “[a] question

may . . . be ‘substantial’ within the meaning of the Rule . . . if there is a contrariety

of views concerning it in the several circuits.” Herzog v. United States, 75 S. Ct.

349, 351 (1955) (Douglas, J., in chambers) (emphasis added). Mr. Silver’s petition

for certiorari would present precisely such a question here.

A. The Court’s Money Laundering Ruling Presents a Substantial Question

This Court upheld the sufficiency of the evidence underlying Mr. Silver’s

money laundering conviction based on its holding that “the Government is not

required to trace criminal funds that are comingled with legitimate funds to prove a

violation of Section 1957.” Slip op. at 26. That ruling is the subject of an


6

acknowledged and wide-ranging circuit conflict on an important question of

federal law. There is a very real probability that the Supreme Court may grant

review to resolve that conflict in this case.

As this Court acknowledged, both the Fifth and Ninth Circuits have held that

the Government cannot prove money laundering beyond a reasonable doubt where

a commingled account contains sufficient “clean” funds to cover the charged

transaction. Slip op. at 25-26. “[T]he Fifth and Ninth Circuits,” this Court

observed, “both require the Government to trace criminally derived proceeds when

they have been commingled with funds from legitimate sources to prove money

laundering under Section 1957.” Id. at 25-26 & n.52.

In United States v. Loe, 248 F.3d 449 (5th Cir. 2001), for example, the

defendant transferred $776,742 from a commingled account with a balance of $2.2

million, of which only $470,790 was traceable to other offenses. Id. at 467.

“Since there was enough clean money in the account to cover the $776,742

transfer,” the Fifth Circuit held, “[n]o reasonable juror could conclude that these

money laundering convictions were warranted beyond a reasonable doubt.” Id.

“[W]here an account contains clean funds sufficient to cover a withdrawal, the

Government cannot prove beyond a reasonable doubt that the withdrawal

contained dirty money.” Id.


7

Similarly, in United States v. Rutgard, 116 F.3d 1270 (9th Cir. 1997), the

Government accused the defendant of transferring funds from a commingled

account that contained $46,000 in fraud proceeds but also a large amount of

“clean” funds sufficient to cover the transactions. Id. at 1290-92. The Ninth

Circuit held the evidence insufficient because the transactions “did not necessarily

transfer the . . . fraudulent proceeds.” Id. at 1292. “The statute,” it observed,

“does not create a presumption that any transfer of cash in an account tainted by

the presence of a small amount of fraudulent proceeds must be a transfer of these

proceeds.” Id. at 1292-93.

In this case, the Court refused to follow those decisions. The Court

described the Fifth and Ninth Circuit view as a “minority one” and instead

“adopt[ed] the majority view of [its] sister Circuits.” Slip op. at 26 & n.53

(collecting other cases). The Court’s holding on the money laundering count thus

implicates a direct conflict among the courts of appeals.

That circuit conflict is a paradigmatic basis for Supreme Court review. The

Supreme Court’s intervention is clearly warranted where “a United States court of

appeals has entered a decision in conflict with the decision of another United States

court of appeals on the same important matter.” Sup. Ct. R. 10(a). “[A] square

and irreconcilable conflict [among courts of appeals] ordinarily should be enough

to secure review, assuming that the underlying question has substantial practical


8

importance.” Stephen M. Shapiro et al., Supreme Court Practice §4.4, at 243

(10th ed. 2013) (emphasis omitted).

The conflict, moreover, is important. According to the Bureau of Justice

Statistics, “[b]etween 1994 and 2001 about 18,500 defendants were charged in

U.S. district court with money laundering.” Bureau of Justice Statistics, Special

Report: Money Laundering Offenders, 1994-2001, at 1 (July 2003) (emphasis

added). Of those, “10,610 were charged with money laundering as the most

serious offense.” Id. The Government continues to charge money laundering on

average more than a thousand times per year. See Internal Revenue Service,

Statistical Data – Money Laundering & Bank Secrecy Act (Oct. 12, 2016) (average

of 1,045 money laundering indictments per year from 2014 to 2016). Prosecutions

under §1957 make up a substantial portion of that total. See U.S. Dep’t of

Treasury et al., 2007 National Money Laundering Strategy 94 (May 3, 2007)

(884 out of 4,592 convictions – roughly 20% – from 2002 to 2005).

The reason the Government charges defendants under §1957 with such

frequency is not hard to imagine. The statute requires no independently culpable

conduct in any traditional sense. It applies whenever a defendant engages in a

sizeable transaction with funds from another offense. See 18 U.S.C. §1957(a);

Rutgard, 116 F.3d at 1291 (observing that the statute is a “draconian” provision

that applies to “the most open, above-board transaction[s]” and potentially “any


9

transaction by a criminal with his bank”). The U.S. Attorneys’ Manual thus

acknowledges that §1957 applies even where a defendant simply “obtains

proceeds from specified unlawful activity . . . and then deposits the proceeds into a

bank account” – and it requires only “consultation” before prosecuting such

offenses. U.S. Attorneys’ Manual §9-105.330 (2007). The statute’s sprawling

reach underscores the need to rigorously enforce its limits – and to ensure that

those limits apply evenly nationwide.

Although this Court rejected Mr. Silver’s interpretation, the Supreme Court

could easily construe the statute differently. By its terms, §1957 requires that the

defendant “engage in a monetary transaction in criminally derived property.” 18

U.S.C. §1957(a) (emphasis added). The plain meaning of that language is that the

transaction itself must consist of proceeds of another offense – not merely funds

from a commingled account. This Court reasoned that “ ‘[a] requirement that the

government trace each dollar of the transaction to the criminal, as opposed to the

non‐criminal activity, would allow individuals effectively to defeat prosecution for

money laundering by simply commingling legitimate funds with criminal

proceeds.’” Slip op. at 26-27. But that is what the statute requires. And there is

no unfairness in holding the Government to its burden of proof, particularly when

the statute is already so overbroad in other respects.


10

Finally, this case presents an excellent vehicle for Supreme Court review.

This Court acknowledged that the sufficiency of the evidence in this case turned on

whether the Court adopted the Fifth and Ninth Circuits’ interpretation of the

statute. Slip op. at 25-26. Bank statements introduced into evidence showed that

more than $8.3 million was deposited into Mr. Silver’s bank account from 2004

through 2014, including his monthly salary, tax refunds, flex spending payments,

health insurance, and countless other receipts that the Government never attempted

to prove unlawful. See Silver Opening Brief at 51-52. That commingled account

contained more than enough clean funds to cover every one of the charged

transactions. See Silver Reply Brief at 25-26 & n.10. This Court’s refusal to apply

the Fifth and Ninth Circuit rule was thus dispositive.

B. The Court’s Extortion and Honest Services Rulings Also Present Substantial Questions

The Court’s sufficiency rulings on the remaining counts likewise present

substantial questions for review. Supreme Court review is warranted where “a

United States court of appeals . . . has decided an important federal question in a

way that conflicts with relevant decisions of [the Supreme] Court.” Sup. Ct. R.

10(c). Indeed, “[a] direct conflict between the decision of the court of appeals of

which review is being sought and a decision of the Supreme Court is one of the

strongest possible grounds for securing the issuance of a writ of certiorari.”

Stephen M. Shapiro et al., Supreme Court Practice §4.5, at 250. That is the


11

situation here: This Court’s rulings on the extortion and honest services counts

conflict directly with governing Supreme Court precedent.

Mr. Silver has a more than reasonable argument that this Court’s extortion

ruling conflicts with Sekhar v. United States, 133 S. Ct. 2720 (2013). Under that

decision, extortion requires not just an “acquisition” of property but also a

“deprivation.” Id. at 2725; see also Scheidler v. Nat’l Org. for Women, Inc., 537

U.S. 393, 404 (2003) (statute “require[s] not only the deprivation but also the

acquisition of property”). The victim must actually part with property. This Court

deemed that requirement met here. Slip op. at 23-24. But the Supreme Court could

well take a narrower view of its precedents.

Even if Mr. Silver obtained mesothelioma leads from Dr. Taub, he never

deprived Dr. Taub of those leads. Dr. Taub remained free to give the leads to other

lawyers too – and he often did so. See Silver Opening Brief at 47-48. The

Government offered no evidence that a lead became worthless to Dr. Taub after

Dr. Taub recommended that a patient contact Mr. Silver.

Nor did Mr. Silver deprive the real estate developers of tax certiorari

business. There was no evidence that the developers paid any fees for work they

would not otherwise have had to obtain from another firm. And the developers

acknowledged that Goldberg & Iryami charged industry standard rates for high-

quality legal work with which they were fully satisfied. See Silver Opening Brief


12

at 48. There is a substantial question whether those facts constitute a “deprivation”

of property within the meaning of Sekhar.

Mr. Silver has a similarly reasonable argument on the honest services

counts. In Skilling v. United States, 561 U.S. 358 (2010), the Supreme Court

limited the scope of the honest services statute to “paradigmatic cases of bribes and

kickbacks” – cases where a defendant “solicited or accepted side payments from a

third party.” Id. at 411, 413. In this case, the Court opined that the referral fees

Mr. Silver earned were “bribes or kickbacks within the meaning of Skilling.” Slip

op. at 24-25. But the Supreme Court could well interpret Skilling differently.

Mr. Silver never received any illicit side payments from a third party. The

only benefits he received were referral fees from the law firms with which he was

associated. There was no evidence that those referral fees were a sham or that the

amount of the fees was inflated – they were the same referral fees that other

lawyers at the firms received when clients they had brought in achieved successful

outcomes. See Silver Opening Brief at 49-51; United States v. Robinson, 663 F.3d

265, 272 (7th Cir. 2011) (“[C]ompensation paid in the ordinary course shall not be

construed as a bribe.”). The Supreme Court could readily conclude that those

payments of ordinary compensation pursuant to unexceptional referral fee

agreements are simply not the sort of “paradigmatic” bribes or kickbacks that fall

within the ambit of Skilling.


13

Those questions are important. The Government aggressively prosecutes

public corruption, with the U.S. Attorney’s Offices in many major cities – and

indeed Main Justice itself – having separate units devoted to this area. The honest

services statute and the Hobbs Act are the laws that prosecutors most often invoke

to bring such cases. See, e.g., Restoring Key Tools To Combat Fraud and

Corruption After the Supreme Court’s Skilling Decision: Hearing Before the S.

Comm. on the Judiciary, 111th Cong. 5 (Sept. 28, 2010) (statement of Lanny A.

Breuer, Assistant Attorney General) (urging that public corruption is “among the

highest priorities for the Department of Justice” and that the honest services statute

is “extremely valuable to the Justice Department’s efforts to attack corruption”).

The Supreme Court has demonstrated a keen interest in the scope of those broad

criminal statutes – as Skilling, Sekhar, McDonnell, and other cases make clear.

This case is an excellent vehicle for providing further guidance to the lower courts.

II. THERE IS GOOD CAUSE FOR A STAY

Finally, there is good cause for a stay. This Court’s sufficiency rulings

threaten irreparable harm to Mr. Silver by violating his double jeopardy rights. At

a minimum, proceeding with a retrial while the Supreme Court weighs the

substantial legal issues at stake would waste the district court’s time with counts

that may be rendered moot by the Court’s decision.


14

It is well-settled that a reversal for insufficiency of the evidence – unlike a

mere instructional error – precludes the Government from retrying a defendant on

double jeopardy grounds. See Burks v. United States, 437 U.S. 1, 18 (1978)

(holding that “the Double Jeopardy Clause precludes a second trial once the

reviewing court has found the evidence legally insufficient”). Accordingly, if the

Supreme Court disagrees with this Court’s resolution of any of Mr. Silver’s

sufficiency challenges, a retrial of those counts would be a violation of Mr. Silver’s

double jeopardy rights.

It is equally well-settled that a violation of those rights constitutes

irreparable harm that cannot adequately be vindicated by a subsequent appeal.

Because the Double Jeopardy Clause is a “guarantee against being twice put to

trial for the same offense,” “the rights conferred . . . would be significantly

undermined if appellate review of double jeopardy claims were postponed until

after conviction and sentence.” Abney v. United States, 431 U.S. 651, 660-61

(1977) (emphasis added); see also United States v. Olmeda, 461 F.3d 271, 278 (2d

Cir. 2006) (similar). Because Mr. Silver faces irreparable harm from a retrial that

violates his double jeopardy rights, he easily satisfies the more lenient “good

cause” standard that applies to a motion to stay the mandate. See, e.g., United

States ex rel. Chandler v. Cook Cnty., 282 F.3d 448, 451 (7th Cir. 2002) (Ripple,


15

J., in chambers) (granting motion to stay the mandate pending review of alleged

denial of immunity from suit).

Even apart from double jeopardy concerns, there is good cause to stay the

mandate here. If the Supreme Court reverses this Court’s sufficiency ruling on any

of the charged offenses, it will significantly narrow the issues in the case. Staying

the mandate so the Supreme Court can act before the retrial goes forward would

avoid wasting the district court’s and the jury’s time with evidence and legal issues

rendered moot by the Supreme Court’s decision.

The money laundering count alone consumed a significant portion of the

first trial. The Government devoted nearly a full day of testimony to that count,

calling two different financial advisors and an FBI case agent to testify about Mr.

Silver’s investments. See 11/18/15 Tr. 2314-551 (Dkt. 158) (Paul Cody, Jordan

Levy, and Deanna Pennetta). It introduced dozens of exhibits, including a single

exhibit with over 2,700 pages of bank records. See Gov’t Ex. 1229; Gov’t Exs.

950-982, 1007-1061, 1511-1513. The money laundering charge even spawned its

own evidentiary dispute due to the Government’s inflammatory and irrelevant

arguments about the supposedly lucrative and exclusive nature of the investments.

See A604-05, A612 (summation) (“Look at all those transactions with Jordan

Levy, these private investments in an Australian satellite company, a private real

estate fund, an exclusive lender that paid him absolutely unbelievable interest


16

rates. . . . He took his [c]rime proceeds and invested it in exclusive accounts with

guaranteed returns . . . .”); Silver Opening Brief at 57-59.

Denying a stay would burden the jury and the district court with wide-

ranging, inflammatory evidence and argument on an issue that could be irrelevant

if the Supreme Court agrees with the Fifth and Ninth Circuits’ interpretations of

the money laundering statute. By contrast, granting a brief stay so the Supreme

Court can consider Mr. Silver’s important legal issues would threaten no prejudice

to the Government whatsoever. For all those reasons, there is good cause to stay

the mandate in this case.

CONCLUSION

The Court should grant the motion and stay the mandate pending the filing

and disposition of a petition for a writ of certiorari in the Supreme Court.

July 27, 2017 Respectfully submitted,

Joel Cohen STROOCK & STROOCK & LAVAN LLP 180 Maiden Lane New York, New York 10038 (212) 806-5644

/s/ Steven F. Molo Steven F. Molo Robert K. Kry Justin V. Shur MOLOLAMKEN LLP 430 Park Avenue New York, New York 10022 (212) 607-8160

Attorneys for Defendant-Appellant


CERTIFICATE OF COMPLIANCE

1. This motion complies with the type-volume limitation of Fed. R. App. P. 27(d)(2)(A) because:

X this motion contains 3,681 words, excluding the parts of the motion

exempted by Fed. R. App. P. 32(a)(7)(B)(iii), or this motion uses a monospaced typeface and contains [state the number of ]

lines of text, excluding the parts of the motion exempted by Fed. R. App. P. 32(a)(7)(B)(iii).

2. This motion complies with the typeface requirements of Fed. R. App. P.

32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because: X this motion has been prepared in a proportionally spaced typeface using

Microsoft Word in Times New Roman 14 point font, or this motion has been prepared in a monospaced typeface using [state name

and version of word processing program] with [state number of characters per inch and name of type style].

/s/ Steven F. Molo Steven F. Molo


motion information statement no. 16-1615...steven f. molo robert k. kry justin v. shur mololamken...

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